Answer

Legal Realism

What does Llewellyn think of legal rules?

Llewellyn thoughts subscribe to the relativistic views that laws or legal rules are nothing more than what a particular court decides on a given or particular day and that the outcomes to such legal disputes will always vary according to the cultural, political, and religious appeal and persuasion of the presiding judges.  According to Llewellyn, the personality and psychological characteristic of a judge influences the judicial decision making. Llewellyn tries to explain the point that when one has a good lawyer then he is likely to win a case depending on how the lawyer persuades the court irrespective of the offense committed.  As such, to Llewellyn, the legal rules are just guidelines that direct courts and judges to make decisions but are not ultimate or final means of decision making. He tries to explain that that judges who are persuaded to bend the law to favor the weaker members of the society construe them generally, cancelling several contracts that come from the predatory behaviors. On its contrary, judges who are persuaded to incline the principles to favor the strongest men in the society will construe such words narrowly, in order for specific individuals in the society to benefit from their acumen and guile.

What does Llewellyn think explains legal decision making?

According to Llewellyn, most legal decision making are not based on the rules on the papers or books but the reality on the ground or in practice. Llewellyn asserts that several factors other than the rule of laws and legal principle are put into action before making a decision. In most cases, the courts decide based on how they have been persuaded or other factors that may be political or economical. In some instances, Llewellyn believes that one cannot be sure that the laws and facts identified in the adjudicators reasons are the definite reasons for making the judgment. He believes that the legal principle that legal formalism treats as uncontroversial in fact hide litigious moral and political choices.

Llewellyn wrote his article to explain legal realism what does legal realism mean to him?

Llewellyn in his article defines legal realism as a form of jurisprudence that focuses on the law as it in reality exists practice rather how it is written on books. According to him, legal realism is concerned with action of judges and several factors that influence the process of juridical decision making during court cases. He says that “[b]ehind decisions stand judges; judges are men; as men they have human backgrounds.” In this case, he means that the law does not exists in a metaphysical realm of fundamental principles or rules but is inseparable from actions of humans and the power of judges to determine the law. Therefore, he believes that there is more to adjudication than the practical application of legal principles and rules on the book. In its simple understanding, Llewellyn says that other than the written laws and principles there are several factors that guide decision of judges. These factors may be political, economical and social. He tries to explain that two people who have committed the same offense may not get similar judgment when they have different political, economical, and social status.